Citation Nr: 0619303
Decision Date: 06/30/06 Archive Date: 07/07/06
DOCKET NO. 05-05 996 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan
THE ISSUE
Entitlement to an initial disability rating higher than 30
percent for a chronic adjustment disorder.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from October 1988 to November
1989.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2004 rating decision of the
VARO in Detroit, Michigan, that granted service connection
for a chronic adjustment disorder and assigned a 30 percent
disability rating, effective September 5, 2003, the date of
receipt of the veteran's claim for disability benefits.
The Board notes that in a July 2005 communication, the
veteran stated that he did not want the claim "to be at the
Board of Veterans' Appeals (BVA) in Washington." He asked
that the appeal be decided by a decision review officer at
the Detroit VARO. Of record is a notation apparently from an
employee at the RO that the veteran was past the 60-day time
frame for requesting review by a decision review officer. In
view of the Board's determination granting the veteran a
substantial increase in his disability benefits, the Board
finds no prejudice to the veteran by proceeding with a
determination at this time.
FINDINGS OF FACT
1. VA has developed adequate evidence necessary for an
equitable disposition of the claim.
2. The service-connected chronic adjustment disorder is
manifested by occupational and social impairment, with
deficiencies in most areas, such as work, family relations,
judgment, thinking, and mood.
CONCLUSION OF LAW
The criteria for an initial disability evaluation of
70 percent, but not more, for a chronic adjustment disorder,
have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 4.3, 4.7, 4.120, Diagnostic Code 9440 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duties to notify and assist claimants in substantiating
claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 and Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156, 3.159, 3.326 (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper VCAA notice must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in his or
her possession that pertains to the claim in accordance with
the provisions of 38 C.F.R. § 3.159(b)(1). VCAA notice
should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see
also Mayfield v. Nicholson, No. 05-7157 (Fed. Cir. April 5,
2006).
The Board also notes that, during the pendency of this
appeal, the United States Court of Appeals for Veterans
Claims (Court) held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a "service connection" claim.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). These
five elements are: (1) Veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and
(5) effective date of the disability. The Court held that
upon receipt of an application for a service connection
claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require
VA to review the information and the evidence presented for
the claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating what is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Because the Court's decision is premised on the five elements
of a service connection claim, it is the consensus opinion
within VA that the analysis employed can be analogously
applied to any matter that involves any one of the five
elements of a "service connection" claim, to include an
increased rating claim.
While the benefit that the veteran is currently seeking on
appeal is an increased (initial) evaluation for his
adjustment disorder, the Board finds that the December 2004
statement of the case specifically outlined what was required
to establish entitlement to an increased (initial) disability
evaluation for an adjustment disorder. With the assignment
of a 70 percent rating, the Board decision herein is granting
a substantial benefit to the veteran. With respect to the
question of effective date not having been addressed, that
will be rectified by the RO when it effectuates the award.
It is also noted that in Pelegrini v. Principi, 14 Vet.
App. 412 (2004), it was held that compliance with 38 U.S.C.A.
§ 5103 required that the VCAA notice requirement be
accomplished prior to an initial unfavorable agency of
original jurisdiction determination. In the present case,
the veteran was sent letters dated in December 2003 and May
2004 prior to the initial adjudication of the claim. In the
communications the veteran was informed that it was his
responsibility to make sure VA received all requested records
that were not in the possession of a Federal department or
agency. The Board therefore finds the veteran has been
provided with every opportunity to submit evidence and
argument in support of his claim, and to respond to the VA
notices.
With regard to the duty to assist, private medical records
and VA records had been associated with the claims file. The
Board has carefully reviewed the veteran's statements and
concludes that he has not identified further evidence not
already of record that could be obtained. Based on the
foregoing, the Board finds that all relevant facts have been
properly and sufficiently developed in this appeal and no
further development is required to comply with the duty to
assist the veteran in developing the facts pertinent to his
case. Essentially, all available evidence that could
substantiate the case has been obtained.
Pertinent Legal Criteria
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule).
38 C.F.R. Part 4 (2005). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from disease or injury incurred in or aggravated
during active military service and their residual conditions
in civil occupations generally. 38 U.S.C.A. § 1155;
38 C.F.R. §§ 3.321, 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The Court has noted that there is a distinction between a
claim based on the veteran's dissatisfaction with an initial
rating (the claim for an original rating) and a claim for an
increased rating. It indicated that in the case of an
initial rating, such as in the instant case, separate ratings
may be assigned for separate periods of time, based on facts
found, a practice known as "staged" ratings. Fenderson v.
West, 12 Vet. App. 119 (1999).
Under the general formula for rating mental disorders, a
30 percent rating is provided when there is occupational and
social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: Depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events).
The next higher rating of 50 percent is assigned where there
is occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
Flattened affect; circumstantial, circumlocutory, or
stereo-typed speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
The next higher rating of 70 percent is assigned when there
is occupational and social impairment, with deficiencies in
most areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: Suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure or
irrelevant; near continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work like setting); inability to establish and
maintain effective relationships.
The maximum schedular rating of 100 percent is assigned when
there is total occupational and social impairment, due to
such symptoms as: Gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name.
38 C.F.R. § 4.120, Code 9440.
Pertinent case law reveals that in determining whether a
veteran meets the criteria for a 70 percent evaluation, the
Board must consider whether the veteran has deficiencies in
most of the following areas: Work, school, family relations,
judgment, thinking, and mood. See Bowling v. Principi,
15 Vet. App. 1, 11 (2001).
Global assessment of functioning (GAF) scores are rated on a
scale reflecting the "psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness. See Carpenter v. Brown, 8 Vet. App. 240, 242
(1995); see also Richards v. Brown, 9 Vet. App. 266, 267
(1996), citing the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders, 4th
Edition (DSM-IV), page 32.
A score of 41 to 50 is warranted for "serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable
to keep a job)."
A score of 51 to 60 is provided for "moderate symptoms (e.g.,
flattened affect and circumstantial speech, occasional panic
attacks) or moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers
or co-workers)."
Analysis
The Board assures the veteran that it has thoroughly reviewed
the record in conjunction with this case. Although the Board
has an obligation to provide reason and bases supporting its
decision, there is no need to discuss in detail the evidence
submitted by the veteran or on his behalf. See Gonzales v.
West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) (the Board
must review the entire record, but does not have to discuss
each piece of evidence). Rather, the Board's analysis below
will focus specifically on what the evidence shows, or fails
to show on the claim. See Timberlake v. Gober, 14 Vet.
App. 122, 129 (2000) (noting that the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant).
After a review of the evidence and the pertinent provisions
of the Rating Schedule set forth above, the Board finds that
the manifestations of the veteran's chronic adjustment
disorder most nearly approximate the criteria for a 70
percent rating, but do not approximate the criteria for the
assignment of a total schedular rating of 100 percent. The
evidence shows impairment in several of the areas needed for
a 70 percent evaluation during the entire appeal period. The
Board is particularly mindful of the Court's determination in
Bowling v. Principi, 15 Vet. App. 1, 11 (2001), cited above.
The pertinent medical evidence of record includes a January
2004 statement from Wilbur B. Leer, Ph.D. The psychologist
reported he had been working with the veteran since his
injury in a vehicle accident several years previously. He
stated that since the car accident, the veteran had had an
emotional adjustment related to the serious nature of the
injury and his inability to work because of a loss of skills
and physical functioning. Notation was also made that the
veteran had gotten divorced during the first few months after
the accident and this had been difficult for him. The
psychologist indicated the veteran had a self-esteem problem
and also had experienced significant depression when he was
informed by his mother that his wife was cheating on him.
This stayed with him until the time he had the head injury
which contributed to prolonged emotional adjustment issues.
The veteran was given a diagnosis of adjustment disorder with
depression and anxiety features. The psychologist described
the veteran as "a very needy individual at this time both
socially and psychologically."
The medical evidence also includes the report of a VA
psychiatric examination accorded the veteran in June 2004.
The claims file was reviewed by the examiner. Mental status
examination findings included depression, short attention
span, poor frustration tolerance, intact judgment, and fair
insight. The examiner noted that a review of the record
showed that adjustment problems and an episode of major
depression could easily explain the change in the veteran's
status during service. What was certain to the examiner was
that since the closed head injury sustained in the
mid-1990's, the veteran had been totally disabled. Axis I
diagnoses were: Cognitive disorder, not otherwise specified,
secondary to closed head injury, nonservice connected;
chronic adjustment disorder; depressive episode in 1989. The
Axis II diagnosis was deferred. The stressors were described
as severe, with a notation that the veteran was unable to
work secondary to the closed head injury. He was given a
current GAF score of 40.
The veteran was accorded another psychiatric examination for
rating purposes by VA in January 2005. The claims folder was
reviewed by the examiner. It was noted the veteran was still
seeing Dr. Leer. He had been taking up to 100 milligrams of
Zoloft a day and 500 milligrams of Depakote twice daily. He
stated the medications had helped.
Currently, he was living with his mother. He was divorced.
He had three children and was actively involved with them.
He stated that when he left service he had trouble getting
work, even before he sustained the closed head injury. He
cited problems with depression and functioning which he
related to his military experiences. Current complaints
included memory difficulty and depression.
Mental status examination findings included dysthymic mood.
Communication showed some impairment as he looked toward his
mother to help fill in blanks and memory lapses. The
examiner opined that the veteran showed evidence of
preexisting depression before the closed head injury in the
mid-1990's. The examiner stated, however, that the reason
the veteran was completely disabled was the closed head
injury and the cognitive disorder associated with it. The
veteran was given Axis I diagnoses of: Cognitive disorder
not otherwise specified; and depressive neurosis or
dysthymia, "a service-connected element." It was indicated
the veteran had a GAF score from the cognitive disorder of
40, and a GAF score for the depressive neurosis of dysthymia
of 55.
Received at the Board in February 2006 was a statement dated
in January 2006 from a Dr. Leer. The veteran's
representative submitted the evidence and waived
consideration of the evidence by the RO. Dr. Leer stated
that the veteran continued to have an adjustment disorder
with depression and anxiety features. He believed the
veteran had deficiencies in most areas, including difficulty
working, family matters, judgment, thinking, and mood. He
referred to an incident involving the veteran's son in which
he exhibited poor judgment, an unstable mood and a lack of
emotional control. He stated the veteran had shown a
continuing level of depression and anxiety affecting his
ability to function independently and appropriately. He
added that the veteran showed persistent difficulty in being
flexible and adapting to stressful situations. It was his
opinion that the veteran met the criteria for a 70 percent
disability rating. He stated that his comments and the
examples he cited regarding the veteran's mood and behavior
difficulties were "exclusive of any disability related to his
traumatic brain injury suffered in his car accident several
years ago."
Based on a longitudinal review of the evidence of record, the
Board finds the evidence persuasive in determining that the
veteran has demonstrated impairment in several key areas
required for the assignment of a 70 percent evaluation
throughout the appeal period. Accordingly, the Board finds
that the symptom picture attributable to the veteran's
chronic adjustment disorder most nearly comports with the
criteria for a 70 percent disability rating for the entire
appeal period. The assignment of a total schedular rating of
100 percent is not warranted, however, as there is no
indication that the veteran has total social and occupational
impairment as a result of the service-connected disability.
At the time of psychiatric examination by VA in January 2005,
it was indicated that the veteran had a GAF score of 40
attributable to a cognitive disorder that the veteran had had
since involvement in a vehicular accident following service.
He was given a separate GAF score of 55 for his depressive
symptomatology. However, the veteran's long-time treating
psychologist indicated in a January 2006 communication that
it was his opinion that the veteran's occupational and social
difficulties, as well as his problems with judgment,
thinking, and mood, were exclusive of any disability related
to the veteran's traumatic brain injury sustained after
service. Some of the symptoms of the cognitive disorder and
the adjustment disorder overlap and it is difficult to
attribute some symptoms to one disorder and some to another.
The Board will not attempt to do so and will, instead,
attribute those symptoms to the service-connected adjustment
disorder. Accordingly, with resolution of all reasonable
doubt in the veteran's favor, the Board finds that a
70 percent rating, but not more, is warranted throughout the
appeal period. The psychologist indicated the veteran had
shown a level of depression and anxiety significantly
impairing his ability to function ever since service, not
just since the time of the vehicular accident. The Board
sees no reason to dispute the comments from the long-time
treating psychologist.
ORDER
An initial disability rating of 70 percent, but not more, for
the veteran's chronic adjustment disorder is granted during
the entire appeal period, subject to the governing
regulations applicable to the payment of monetary benefits.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs